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Insanity, MSO, and Related Issues


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Title: Insanity, MSO, and Related Issues

Insanity, MSO, and Related Issues
  • Russell M. Bauer, Ph.D.
  • July 24, 2008

(No Transcript)
Mental State at Offense
  • One of the most difficult and bloodcurdling tasks
    of a forensic psychologist
  • MOTIVATIONAL factors affect current presentation
  • Requires investigative reconstruction of crime
    events, often involving information psychologists
    are not used to reviewing

History of Insanity Defense
  • Basic Concept free will
  • McNaghten Case (1840s) emphasizes cognitive
  • Irresistable Impulse rule volitional control
  • Durham vs. United States product of mental
    disease or defect (1954) also known as the but
    for test
  • American Law Institute Model Penal Code
    cognition (appreciation) vs. volition (control)
  • 1984 Congress wrongfulness appreciation
  • VERY rare defense (ltltl, and of that, rarely

  • 13th century man  must be totally deprived of
    his understanding and memory so as not to know
    what he is doing, no more than an infant, brute
    or a wild beast (Melton, 1997, p. 190).

  • 1843 murder of Prime Ministers assistant
  • MNaghten acquitted based on mental disorder
  • House of Lords later ruled To establish a
    defense on the ground of insanity, it must be
    clearly proved that, at the time of committing of
    the act, the party accused was laboring under
    such a defect of reason, from disease of the
    mind, as not to know the nature and quality of
    the act that he was doing, or, if he did know it,
    that he did not know what he was doing was wrong
  • MNaghten committed to Bedlam, eventually died in
    another hospital after decades of treatment

  • Defendant bites another person because he
    believes him to be a piece of chicken (crime
  • Could prove insanity under Prong 1
  • Defendant bites another person, knowing him to be
    a person, but not knowing that biting is painful
    and can injure the other person
  • Could prove insanity under Prong 2

American Law Institute (ALI, 1955)
  • A person is not responsible for criminal conduct
    if at the time of such conduct as a result of
    mental disease or defect he lacks substantial
    capacity either to appreciate the wrongfulness of
    his conduct or to conform his conduct to the
    requirements of the law
  • Changes from before
  • Change implication of full (did not know) to
    substantial (appreciate)
  • Change know to appreciate
  • Change criminality to wrongfulness
  • Essentially eliminated repeated acts in and of
    themselves (e.g., APD)

Irresistable Impulse
  • The defendant is not legally responsible
  • if by reason of the duress of mental disease he
    had so far lost the power to choose between right
    and wrong, and to avoid doing the act in question
    that his free agency was destroyed
  • act the product of mental disease solely
  • Problem how do you distinguish an irresistable
    impulse from an impulse not resisted?

Three Variations on Irresistable Impulse
  • (l) Defendant 'acted from an irresistible and
    uncontrollable impulse'
  • (2) Defendant 'lost the power to choose between
    the right and wrong, and to avoid doing the act
    in question, as that his free agency was at the
    time destroyed'
  • (3) Defendant's 'will . . . has been otherwise
    than voluntarily so completely destroyed that his
    actions are not subject to it, but are beyond his

Durham v. United States
  • Source of the product test
  • simply that an accused is not criminally
    responsible if his unlawful act was the product
    of a mental disease or defect
  • Problems
  • what is a product? (i.e., what is the causative
  • Which mental diseases qualify?
  • Case eventually overturned now of historical
    significance only

State Interpretations
  • One-half use MNaghten
  • One-third of states use ALI
  • Three states have reference to irresistable
  • Four states have abolished insanity defense
    altogether (Montana, Idaho, Utah, Kansas)
  • NH product of mental disease or defect

Generally Excluded Mental Disorders
  • Antisocial personality
  • Adjustment disorder
  • Compulsive disorders
  • Seizure disorders allowable in some
    jurisdictions, not in others

1984 Congress (Insanity Defense Reform Act)
  • Reform in response to Hinckley verdict (aquitted
    on volitional prong of ALI)
  • 1980s ABA and APA standards A person is not
    responsible for criminal conduct if, at the time
    of such conduct, and as a result of mental
    disease or defect, that person was unable to
    appreciate the wrongfulness of their conduct
  • 1984 Congress adopts ABA standard (cognitive
    prong of ALI)
  • Defense has burden (affirmative defense)
  • clear and convincing evidence needed

Unsuccessful Insanity Pleas
  • Kip Kinkel, l7, shot 29 people in an Oregon
    school rampage in 1998 heard command voices
    abandoned insanity defense, got 25 years
  • David Berkowitz, Son of Sam killings NYC,
    sentenced to 365 years in jail
  • Ted Bundy US serial killer l974-l978
    responsible for an estimated 40 murders executed
    in FL electric chair
  • Sirhan Sirhan murdered Robert Kennedy l968
    convicted, sentenced to death commuted to life
    in prison
  • Henry Lee Lucas serial murderer in FL l982
  • Charles Manson cult leader sentenced to death
    CA suspends death penalty later
  • John Wayne Gacy, used DID defense convicted of
    33 murders in l980 executed l994
  • Ted Kaczynski, Unabomber, thought to be suffering
    from paranoid schizophrenia 4 consecutive life
  • Jeffrey Dahmer necrophilia, cannibalism,
    l60-page rambling confession convicted l992,
    killed in prison l994

A notable exception
  • Andrea Yates drowned children in bathtub
    history of postpartum depression, convicted in
    2003 conviction overturned on appeal, was found
    NGRI in second trial

Issues in Insanity Defense
  • All variations require mental disease or defect
  • Wrong but morally justified wrongfulness can be
    interpreted as moral, not criminal, only with
    specific facts (in some jurisdictions)
  • Law does not distinguish conscious from
    unconscious reasoning
  • Meaning of the terms know and wrong
  • Irresistable Impluse officer at the elbow
  • Measures of criminal responsibility R-CRAS

What the Jury is Told (CA)
  • The defendant has been found guilty of the crime
    of _____. You must now determine whether he
    she was legally sane or legally insane at the
    time of the commission of the crime. This is the
    only issue for you to determine in this
  • You may consider evidence of his her mental
    condition before, during and after the time of
    the commission of the crime, as tending to show
    the defendant's mental condition at the time the
    crime was committed.
  • Mental illness and mental abnormality, in
    whatever form they may appear, are not
    necessarily the same as legal insanity. A person
    may be mentally ill or mentally abnormal and yet
    not be legally insane.
  • A person is legally insane when by reason of
    mental disease or defect he she was incapable
    of knowing or understanding the nature and
    quality of his her act or incapable of
    distinguishing right from wrong at the time of
    the commission of the crime.
  • The defendant has the burden of proving his
    her legal insanity at the time of the
    commission of the crime by a preponderance of the

Burden of Proof
  • One-third of states require prosecution to prove
    sanity beyond reasonable doubt (90-95)
  • Most remaining states require defendant to prove
    insanity by preponderance of evidence (5l)
  • AZ and federal courts defendant must prove
    sanity by clear and convincing evidence (75)

Basic Elements of Crime Behavior Relevant to
Insanity Defense
  • physical conduct of crime (actus reus)
  • mental state (level of intent) associated with
    the crime (mens rea)
  • to convice beyond reasonable doubt, state must
    prove that the defendant committed the actus reus
    with the requisite mens rea for that crime

Defenses Related to Sanity
  • Automatism Defense
  • acts committed involuntarily
  • this is different from sanity
  • automatons are unaware (but will be held
    responsible if ailment had previously existed and
    steps were not taken to prevent or manage it)
  • prosecution bears burden of negating automatism
    beyond reasonable doubt
  • no mental disease or defect required

Defenses Related to Sanity
  • Diminished Capacity
  • mental state essentially defined culpability
    planning a crime involves more intent than
    accidentally committing one
  • specific vs. general intent
  • Mens Rea components
  • Purpose conscious intent
  • Knowledge awareness, but not conscious intent
  • Recklessness disregarding a substantial and
    unjustifiable risk
  • Negligence not aware of a risk, but should have
    been aware

Defenses Related to Sanity
  • Intoxication - generally not viewed positively by
    the courts unless accidental
  • Guilty but Mentally Ill - may be sentenced to any
    term appropriate to the offense with the
    opportunity to receive treatment during the
    period of incarceration

MSO Evaluation
  • Place emphasis on information related to crime
    scenario (contains mens rea information)
  • Statements/confessions are important, but must be
    treated with caution
  • Brief MSE (for diagnosis)
  • Discuss crime with defendant
  • Prior records relevant to diagnosis

Phases of MSO Evaluation
  • Review of Records
  • Intro, orientation, rapport building
  • Developmental/Sociocultural history
  • Assessment of current mental status
  • May or may not require neuropsychological
  • Should stage assessment relative to alleged
    behavioral shortcomings
  • Questions/descriptions of alleged crime